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State v. Montello3/10/2004
In this consolidated appeal, the state challenges county and circuit court orders *614 granting motions to suppress urine test results obtained from appellees, Joseph Montello and Steven P. Costa, pursuant to Florida's implied consent statute.
Although noting their disagreement with State v. Bodden, 27 Fla. L. Weekly D2382, --- So.2d ----, 2002 WL 31421575 (Fla. 2d DCA Oct.30, 2002), review granted, 853 So.2d 1071 (Fla. Sept.15, 2003), the trial courts granted the motions to suppress because they were bound by it.
We reverse and adopt the reasoning of State v. Pierre, 854 So.2d 231 (Fla. 5th DCA 2003). As did the court in Pierre, we rephrase the question certified by the county court:
Does section 316.1932, Florida Statutes (2002), require that urine testing procedures first be "approved" by the Florida Department of Law Enforcement before they may be administered to persons who are suspected of DUI?
Id. at 232. Consistent with Pierre, we answer the question in the negative and certify conflict with Bodden.
To Pierre's reasoning, we add the following observations that support the conclusion that urine tests need not be "approved" by the Florida Department of Law Enforcement (FDLE) to be admissible under the implied consent statute.
The plain meaning of statutory language is the first consideration of statutory construction. See Fla. Convalescent Ctrs. v. Somberg, 840 So.2d 998, 1000 (Fla.2003). "[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Id. (citation omitted). The statute at issue in this case, Bodden, and Pierre, is section 316.1932(1)(a)1., Florida Statutes (2002) which stated [FN1]:
FN1. The statute, as noted below, has been substantially amended in response to Bodden, in this past legislative session.
Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances....
(Emphasis added).
Pierre points out that Chapter 316 "makes a distinction between the two tests [urine and "approved chemical test"] in numerous places throughout the statute, evincing that urine tests are not merely subsets of 'chemical tests.' " 854 So.2d at 232-33. Section 316.1932(1)(a)1. distinguishes between urine and breath tests. One sentence began: "The chemical or physical breath test must be incidental to a lawful arrest ...." § 316.1932(1)(a) 1., Fla. Stat. (2002). A few lines later, the statute read: "The urine test shall be administered at a detention facility...." Id. The separation of "urine test" from "chemical or physical breath test" in these two sentences indicates a legislative intent to treat the two items separately.
The distinction between breath and urine tests is further demonstrated by the structure of the last sentence in section 316.1932(1)(a)1.:
The refusal to submit to a chemical or physical breath test or to a urine test *615 upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.
(Emphasis added). This language indicates a separation of urine tests from chemical or physical breath tests; otherwise the statute would have no reason to include the emph
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